Citation NR: 9723457
Decision Date: 07/03/97 Archive Date: 07/15/97
DOCKET NO. 94-12 594 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for residuals of a
postoperative right knee injury, currently evaluated as 20
percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Michelle S. Miyake, Associate Counsel
INTRODUCTION
The veteran had active service from November 1987 to
September 1991.
This appeal is before the Board of Veterans’ Appeals (Board)
from an April 1993 rating decision of the Regional Office
(RO) of the Department of Veterans Affairs (VA) in Winston-
Salem, North Carolina, which assigned a temporary total
rating from August 3, 1992, until October 1, 1992, for
surgery and convalescence for a right knee disorder under
38 C.F.R. § 4.30 (1996), and then resumed a 20 percent
rating. The veteran appeared and presented testimony at a
May 1996 hearing before a Member of the Board. In October
1996, the Board remanded the case to the RO for further
development. This development has been completed and the
case was returned to the Board for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his residuals of a postoperative
right knee injury have increased in severity, warranting a
rating higher than 20 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for
residuals of a postoperative right knee injury.
FINDINGS OF FACT
1. All relevant evidence for an equitable disposition of the
veteran's appeal has been obtained.
2. The veteran's service-connected right knee disorder is
currently manifested by pain, swelling, tenderness,
crepitation, and locking; X-ray study of the right knee shows
evidence of slight narrowing of the joint space.
3. Range of motion of the right knee is described as full
and the knee is stable.
CONCLUSION OF LAW
A rating in excess of 20 percent for residuals of a
postoperative right knee injury is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4
§§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a,
Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds the veteran's claims are well grounded,
meaning plausible. 38 U.S.C.A. § 5107(a); Proscelle v.
Derwinski, 2 Vet.App. 629 (1992). The Board is also
satisfied that all relevant facts have been developed
properly and that no further development is needed to meet
the duty to assist the veteran as mandated by § 5107.
I. Factual Background
The record reveals that the veteran sustained a right knee
injury in service. On VA examination in November 1991, the
veteran complained of pain and frequent popping in his right
knee. Examination revealed full range of motion with some
tenderness to pressure over the medial aspect of the right
knee. There was no swelling or crepitation. X-rays of the
right knee showed no significant pathological findings. The
diagnosis was residuals of an old right knee injury.
In December 1991, the RO granted service connection for
residuals of a right knee injury, and assigned a compensable
rating.
Private treatment reports, dated from December 1991 to March
1992, show that the veteran was seen for complaints of right
knee pain. In December 1991, the veteran underwent an
arthroscopic shaving of the lateral meniscus. The diagnosis
was non-specific synovitis of the right knee with partial
tear of the lateral meniscus. On follow up examination in
January 1992, the knee revealed full range of motion with
very minimal effusion. On follow-up examination in March
1992, the veteran complained of increased pain and popping on
the medial aspect of the knee. Examination revealed full
range of motion with no effusion. The portals were healed
nicely; however, there was some tenderness noted to the
medial aspect of the proximal tibia just distal to the joint
line. McMurray’s test was negative.
By rating decision in April 1992, the RO effectuated the
hearing officer’s decision and assigned a 10 percent rating
for residuals of a postoperative right knee injury.
Treatment reports from the veteran’s private physician, dated
in April 1992, indicated he was seen for complaints of right
knee pain, popping, locking, and swelling. Examination
revealed tenderness along the medial and lateral joint lines.
There was no effusion but locking in full extension. The
veteran had pain in the knee past 20 degrees of flexion. X-
rays revealed the knee cap was well reduced with no other
bony abnormalities. The impression was probable meniscal
tear with locking of the knee.
By rating decision in May 1992, the RO granted an increased
rating for residuals of a postoperative right knee injury and
assigned a 20 percent rating.
VA treatment reports dated from July to August 1992 indicated
the veteran underwent arthroscopic surgery in August 1992.
By rating decision in September 1992, the RO denied a claim
for entitlement to a temporary total rating based on surgery
because the veteran was not hospitalized for over 21 days and
did not require at least 30 days convalescence.
Subsequent VA treatment reports dated from September to
December 1992 indicated that the veteran was seen on
September 1, 1992 for complaints of continued medial joint
line pain and locking of the right knee. An October 1992
report showed that the veteran had undergone physical therapy
and was issued a knee brace. The right knee was described as
edematous. By rating decision in April 1993, the RO granted
a temporary total rating under 38 C.F.R. § 4.30 for surgery
and convalescence, from August 3, 1992, until October 1,
1992, and then resumed a 20 percent rating.
A VA examination was conducted in November 1993. The
examiner reported the veteran’s history of undergoing four
previous arthroscopic surgeries including a meniscectomy on
his right knee. Examination of the right knee revealed full
extension and full flexion. There was no medial or lateral,
anterior or posterior ligamentous instability. The examiner
noted numerous well-healed surgical scars. There was
palpable crepitus with flexion and extension of the knee.
The examiner noted that x-rays were not necessary due to the
veteran's young age and cartilaginous nature of his
complaints. The diagnosis was full range of motion with
moderate pain and no ligamentous instability. By rating
decision in December 1993, the RO confirmed and continued the
20 percent rating on the basis that the veteran had full
range of motion, no instability, and moderate pain.
In May 1996, the veteran appeared and presented testimony
before a Member of the Board. He testified that he has
flare-ups of stiffness, increased pain, locking, swelling,
and instability of the right knee requiring a knee brace. He
explained that he is unable to wear his knee brace for the
entire day because his knee begins to swell causing him to
remove the brace. The veteran explained that he has trouble
walking up and down stairs, with walking down being worse.
He also stated that he avoids walking on uneven surfaces. He
explained that his knee is worse in the morning and more
severe during the winter months when it gets stiffer. He
explained that he primarily does desk work; however, sitting
causes stiffness and pain in his knees. He testified that
his doctors have recommended additional surgery. A complete
transcript of the testimony is of record.
In February 1997, a VA examination was conducted. The
veteran complained of pain, locking, and swelling. He
reported that the swelling increases as the day progresses
whenever he is standing on his leg or walking over rough
surfaces. He further complained that he has occasional
giving way, which is intermittent in nature, and has
occasional locking. He reported pain when going up and down
stairs. He stated that he has had to switch jobs from being
a surveyor to working in a sedentary job. Examination
revealed full range of motion and a stable knee. He had mild
crepitus on range of motion and mild medial joint line
tenderness. He also had mild effusion and a palpable tender
medial plica. He was tender over the medial facet of his
patella, which was well aligned and tracked normally. He had
a positive grind test. X-rays showed no evidence of a
fracture or subluxation. There was a possible small
suprapatellar effusion. There was slight narrowing of the
knee joint space. There was no other focal process. The
impression was slight knee joint narrowing and possible mild
effusion. The examiner proffered that the veteran's
functional limitation was secondary to pain because of his
mild degenerative arthritis, which prevented him from going
up and down stairs, or using inclines or bending and stooping
on any routine basis. Although he had episodes of giving way
and locking, his knee was stable and there was no objective
instability. The examiner noted that these symptoms of
giving way and locking were secondary to the degenerative
changes in the knee.
In March 1997, the RO confirmed and continued the 20 percent
evaluation, and that rating has continued to the present
time.
II. Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4,
§ 4.1. Separate diagnostic codes identify the various
disabilities.
In considering the residuals of an injury, it is essential to
trace the medical-industrial history of the disabled person
from the original injury, considering the nature of the
injury and the attendant circumstances, and the requirements
for, and the effect of, treatment over past periods, and the
course of the recovery to date. 38 C.F.R. § 4.41.
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. The functional loss may be due to pain that is
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40. The factors of disability affecting joints are
reduction of normal excursion of movements in different
planes, weakened movement, excess fatigability, swelling, and
pain on movement. 38 C.F.R. § 4.45. When a diagnostic code
provides for compensation based solely on limitation of
motion, the provisions of §§ 4.40 and 4.45 must be
considered, and examinations upon which evaluations are based
must adequately portray the extent of functional loss due to
pain “on use or due to flare-ups.” DeLuca v. Brown,
8 Vet.App. 202, 206 (1995).
Although the regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history, 38 C.F.R. §§ 4.1, 4.2, 4.41, where
entitlement to compensation has already been established, and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994).
In evaluating the veteran’s request for an increased rating,
the Board considers the medical evidence of record. The
medical findings are then compared to the criteria set forth
in the VA’s Schedule for Rating Disabilities. An evaluation
of the level of disability present must include consideration
of the functional impairment of the veteran’s ability to
engage in ordinary activities, including employment, and the
effect of pain on the functional abilities. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Diagnostic Code 5010 directs that arthritis due to trauma is
evaluated as degenerative arthritis. Degenerative arthritis,
established by x-ray findings, will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. 38 C.F.R. §
4.71a, Diagnostic Code 5003. Limitation of motion that is
noncompensable under the applicable diagnostic code is
assigned a 10 percent evaluation under Code 5003. Id. In
the absence limitation of motion, a 10 or 20 percent
evaluation is assigned for x-ray evidence of involvement of 2
or more joints, depending upon whether there are occasional
incapacitating exacerbations. Id.
Limitation of motion of the knee is rated under Diagnostic
Code 5260 for limitation of flexion and Diagnostic Code 5261
for limitation of extension. 38 C.F.R. § 4.71a. The Board
notes that the medical evidence of record does not show that
the veteran has any limitation of motion of his right knee.
See 38 C.F.R. § 4.71a, Plate II (1996). Therefore, the
provisions of Codes 5010 and 5003 are not for consideration,
and more than a 10 percent evaluation is not available under
Code 5003 for the veteran’s right knee disability.
The veteran's disability is currently rated under Diagnostic
Code 5257. The rating schedule provides a 10 percent rating
for slight recurrent subluxation or lateral instability of a
knee, 20 percent for moderate recurrent subluxation or
lateral instability, and 30 percent for severe subluxation or
lateral instability of the knee. 38 C.F.R. § 4.71a ,
Diagnostic Code 5257.
In the instant case, the Board finds that the medical
evidence reveals that the veteran has degenerative changes in
the right knee with some related functional limitation.
While the veteran wears a knee brace, has right knee pain,
tenderness, and mild effusion, his most recent VA examination
demonstrates no evidence of ligamentous instability or other
findings such as to classify the joint impairment as severe.
The Board further observes that the veteran had functional
limitation due to pain that limited routine use of stairs,
stooping, or bending, and that his symptoms of giving way and
locking were due to degenerative changes. Therefore, we find
that the probative medical evidence of record does not
reflect current disability due to the veteran’s service-
connected right knee disorder that warrants more than the
current 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic
Code 5257. Furthermore, the record shows the veteran has
full range of motion of the right knee, thus a compensable
rating under either Code 5260 or 5261 is not warranted.
The Board notes that the provisions of §§ 4.40 and 4.45 in
relation to complaints of pain have been taken into the
consideration. The February 1997 VA examination took pain
into account in assessing any limitation of knee function.
The examination findings and other evidence are consistent
with a moderate knee disability. Again the Board emphasizes
that the veteran does not have any limitation of motion in
the knee. As the preponderance of the evidence is against an
increased rating, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In reaching this
decision, the Board has considered the complete history of
the disability in question as well as the current clinical
manifestations and the impact the disability may have on the
earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2;
Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
ORDER
An increased rating for residuals of a postoperative right
knee injury is denied.
N. R. ROBIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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